Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time. As strange as it may seem to the non-lawyer, you may acquire property without the consent of the actual title holder if you possess it long enough and meet the legal requirements. The problem occurs more often than people realize. A home owner puts up a fence based on an erroneous survey, and no one catches the mistake for many years. A neighbor parks his RV on the vacant lot next to his home for years. The subsequent purchaser does the same and builds a garage on the land, believing the land is part of the property he has purchased. It is not until a developer buys the land and wants to build an apartment complex that they discover the error.
One theory behind adverse possession is that the doctrine rewards the productive use of land, while penalizing the unproductive owner who sleeps on his rights. The other line of thought argues that adverse possession really functions to protect property rights. The doctrine protects ownership by barring stale claims and errors in the title records. The idea is that as time passes it becomes more difficult and ultimately not worthwhile to seek out every remote claim to the disputed property.
In Arizona in order to possess the property being claimed you must show that:
- You were the exclusive possessor and actually entered the property.
- Your possession was open and notorious—your possession must be seen. The possession must be appropriate to the type, size, and use of the land. The general idea is to give the owner reasonable notice that you are in possession and give him the opportunity to eject you.
- Your possession must be adverse to the owners claim; in other words, without the owners consent. If the owner has given permission for you to be on the property, you can't claim the property adversely.
- Your possession must be continuous for 10 years. If your entry was only occasional, you may be deemed a trespasser and not be able to claim adverse possession. Continuity can also be established by adding together or "tacking" successive adverse possessors. For example, if A possesses the land for 5 years and then sells it to B, who possesses it for 5 years, B may then claim title by adverse possession by tacking the two claims.
To discuss your adverse possession concern, please contact our office or call 623-239-4422 to speak with an experienced Arizona real estate attorney.